Himachal Pradesh High Court
Shri Karam Chand And Another vs Shri Prakash Chand And Others on 30 August, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RSA No. 440 of 2005 Reserved on: 21.8.2019 Decided on : 30.8.2019 Shri Karam Chand and another ...Appellants.
Versus Shri Prakash Chand and Others ....Respondents. Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Yes.
Whether approved for reporting?1 For the Appellants: Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate.
For the Respondents: Mr. Anand Sharma, Sr. Advocate with Mr. Karan Sharma, Advocate, for respondent No.1.
Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate, for respondents No.2 to 4.
Respondent No. 7 exparte.
Sureshwar Thakur, Judge The instant appeal, is, directed against the impugned verdict recorded, upon, Civil Suit No. 83 of 1999, by 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 29/09/2019 02:54:56 :::HCHP
...2...
the learned Civil Judge (Sr. Div) Chamba, on, 15.3.2004, and, .
which stands affirmed in appeal, before the learned Additional District Judge, Fast Track Court, Chamba in Civil appeal No. 12/05/04, (a) wherethrough the suit of the plaintiff/respondent No.1 herein (for short "plaintiff"), for, rendition of a declaratory decree, visavis, his becoming possession, alongwith Nand Lal, hence stood decreed, and, also r owner in wherethrough, the espoused decree for permanent prohibitory inunction, visavis, the suit land, and, against the defendants therein, also stood rendered.
2. Necessarily, hence, the aggrieved therefrom, defendants/appellants herein (for short "defendants"), through, instituting the instant appeal, before this Court, hence strived to beget its reversal.
3. The brief facts of the case are that the land comprised in Khasra Nos. 137, 168, 200, 249, 317 and 331 measuring 9 bighas and 5 biswas (for short the suit land) is owned and possessed by the plaintiff. It is further averred by ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...3...
the plaintiff that the suit land was earlier owned by the .
predecessorininterest of proforma defendants No. 6 to 8 and he had inducted Rasila and Hardiyal as tenants over the suit land. After coming in force of H.P Tenancy and Land Reforms Act (for short "the Act") Rasila and Hardiyal became owners of the suit land, though, entries continued describing them to be tenants. Defendants No. 6 to 8 moved an application for resumption of the land bearing khasra No. 168 measuring 17 Bighas and Khasra No. 331/1 measruing 7 biswas, which was ordered to be resumedby them by the Land Reforms Officer (for short "LRO") vide order of 29.6.1976, however the resumption proceedings are still not finalized, therefore, the entires in the record of right are still continuing wherein the land has been shown under the tenancy of late Rasila and Hardiyal, whereas in fact in view of the afore order they had become owners of the suit land to the extent of 711 bighas and the possession of the remaining land measuring 1 Bigha and 14 biswas remained with defendants No. 6 to 8. Hardiyal ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...4...
died on 10.6.1984, who was succeeded by Rasila. The .
predecessorininterest of the plaintiff, who was the only brother left at that time and other brother Shiv Charan and Babugir having already died. Thereafter Rasila continued to cultivate the land as owner. The afore Rasila has only one son of Naro.
r to daughter namely Naro, and, the plaintiff Parkash Chand is The deceased Rasila executed a valid will in favour of the plaintiff, and then the plaintiff succeeded to the estate left by Rasila. The afore deceased Rasila also gifted three biswas of land out of the suti land to defendant No.3 Nand Lal and mutation No. 242 was also attested in favour of Nand Lal. However, in the year 1997, the revenue agency got mutation attested in favour of the defendants No.1 to 5 qua the half share of the suit land, and, on the basis of which, the afore entered upon the suit land, as, such, the plaintiff was forced to file the present suit. Hence, the suit.
3. The defendants No. 1 to 5, by filing the written statement, have contested the suit of the plaintiffs, and, have ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...5...
taken preliminary objections of maintainability, locus standi, .
estoppel and nonjoinder of necessary parties. On merits, they admitted qua late Shri Rasila being the material grandfather of the plaintiff, who expired on 1.5.1999 and not on 28.3.1999.
It is further alleged by them that late Sh. Hardiyal and Rasila were recorded tenants on the suit land, however after the death of Hardiyal, the suit land was being cultivated by defendants No. 1 to 5, as, tenants because Rasila was not in a position to cultivate the suit land, and, his share in the suit was also being cultivated by defendants No. 1 to 5. They also alleged that no resumption took place, as, the defendants No. 6 to 8 were not entitled to resume the tenancy land under the law, and, if any wrong order has been passed by the LRO concerned on 29.6.1976, is, illegal and not binding upon the defendants. They have also denied the execution of any will in favour of the plaintiff by Shri Rasila.
4. Defendants No. 6 to 8 despite service, neither appeared in Court, hence, were proceeded against expare.
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5. In the replication, the plaintiff has reiterated and .
reasserted the contents the facts enumerated in the plaint and has controverted that of the writtenstatement.
6. From the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether Shri Rasila had inherited tenancy rights qua the suit land on the death of Hardial as alleged? OPP
2. Whether the plaintiff is exclusive owner in possession of the suit land, as alleged? OPP
3. Whether mutation No. 254 attested in favour of defendants is illegal as alleged? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether the plaintiff is estopped from filing he suit by his act and conduct? OPD
7. Whether the suit is bad for nonjoinder of necessary parties? OPD
8. Whether the defendants No.1 to 5 are in possession of the suit land, as tenants, as alleged? OPD
8.A Whether the defendants No. 6 to 8 had resumed the land comprising Khasra No. 168 ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...7...
measuring 17 bighas and 331/1 measuring 7 biswas .
as per orders dated 29.6.1976 of LRO Chamba, if so its effect? OPD 8B Whether the deceased Rasila has executed a valid will in favour of the plaintiff on 1.1.1996 as alleged, OPP
9. Relief.
7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, decreed the suit of the plaintiff. In an appeal, preferred therefrom, by the aggrieved defendants, before the learned First Appellate Court, the latter Court, hence, affirmed the findings recorded by the learned trial Court.
8. Now the defendants have instituted the instant Regular Second Appeal before this Court, wherein, they assail the findings recorded, in the impugned verdicts, hence by both the learned Courts below. When the appeal came up for admission, on 29.8.2005 this Court, admitted the appeal, on the hereinafter extracted substantial question, of law: "1. When the proceedings for resumption of land filed by the land owners did not attain the finality, are not the findings of both the courts below illegal, erroneous ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...8...
and perverse in holding that the tenants namely Shri .
Hardyal and Shri Raseela automatically became owner of the suit land by virtue of the provision of H.P Tenancy and Land Reforms Act?
5. Whether both the Courts below upholding the validity of the WILL are contrary to the facts proved on record and opposed to the Provisions of Section 63 of Indian Succession Act, 1968 of Evidence Act."
Substantial questions of law:
9. Significantly, the stand points, wherefrom, the, lis engaging the parties at contest, can come to be rested, (i) are comprised in the pedigree table, table whereof stands extracted hereinafter, wherein reflections are cast, visavis, Hardayal, Shiv Charan, Rasila and Babugeer, all deriving their respective parentages',from, Bherogir, and, also reflections are cast therein qua the afore siblings, except one Hardayal, leaving behind their respective successors. In addition, the hereinafter extracted pedigree table also shows, visavis, Hardayal predeceasing Rasila.
BHEROGIR Shiv Charan Rasila Hardayal Babugir Died (5/5/82) (28/3/99) (10/6/84) ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...9...
1. Chunni Lal Naro Kali
2. Karam Chand (Daughter) .
3. Nand Lal
4. Ashok Kumar
5. Inderjeet Prakash Chand(plaintiff).
10. However, mutation borne in Exhibit P9, upon, demise, of, Hardiyal, wherethrough the tenancy rights, in, the suit land, as held, during his life time, by the afore Hardiyal, hence, stood attested, visavis, Rasila, and, also, visavis defendants No. 1 to 5. Since the afore Rasila, during, his life time, executed a testamentary disposition, hence bequeathing the suit land, visavis, the plaintiff herein, thereupon, hence therethrough also the plaintiff acquire right, title and interest, as, tenants in, the suit land.
11. Nonetheless, an acerbic contest has erupted, inter se, the contesting litigants, and, is, confined to the, validity, of, attestation, of, mutation, upon, demise of Hardiyal, qua, Rasila. Obviously, the learned Courts, upon, applying the general rules, of, succession, as, embodied in Section 8 of Hindu Succession Act, concluded that with the afore Hardiyal dying intestate, and, upon his demise, and, upon hence his ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...10...
estate opening for succession, thereupon in consonance, with, .
the mandate of Section 8, of, the Hindu Succession Act, Rasila being entitled to appositely succeed, to, the entire share of the afore rather in the suit land. However, the afore findings, are, in gross detraction, of, the special mandate, as, stands encapsulated, in, a special statute, nomenclatured, as, Himachal Pradesh Tenancy and Land Reforms Act, 1972, (i) wherein in Section 45 thereof, rather (a) prescription is carried, visavis, the manner of succession, visavis, the tenancy of, the, deceased concerned, and, thereupon, the, apt specific contemplation, borne in a special statute, and, appertaining to the afore factum probandum, rather prevails visavis, the provisions borne in Section 8 of Hindu Succession Act, (b) thereupon any dependence placed, hence by the learned courts below, upon, the afore general rules, of, succession, borne in the succession Act, for, rather invalidating the mutation attested, visavis, Rasila, upon, demise of his brother Hardayal, is, misplaced.
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12. A perusal, of, the apt and relevant provisions of .
Section 45, of, the Himachal Pradesh Tenancy and Land Reforms Act, which stand extracted hereinafter, discloses, qua, upon, upon a tenant dying intestate, thereupon the right, of, succession to his tenancy rights, devolving, upon, his male linear descendants, (i) since Hardiyal predeceased Rasila, and, the line of succession, to his estate, becoming or commencing thereafter, or the line of succession ensuing, visavis, male linear descendants, (ii) thereupon with the afore pedigree table hence making depictions qua apart, from, Rasila, Shiv Ram and Babugeer also being siblings, of, the deceased Hardiyal, (iii) and, yet when Shiv Charan, predeceased Hardiyal, and, the date of demise, of, Babugeer is not mentioned, thereupon, assumingly, if, Shiv Charan also predeceased Hardiyal, and, when he is survived by Kali, who , though, is, not the appropriate recipient, of, devolution of tenancy rights, (iv) yet when Shiv Charan though predeceased Hardiyal, nonetheless with his being succeeded by male ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...12...
descendants, thereupon alongwith Rasila, the, LRs of the afore .
Shiv Charan, were, also entitled to be bestowed, with, the afore status, in, the suit land, as, made in the mutation comprised in Ex. P9. However, the effect, of, lacunae, if any, in, the order, of, the mutation, is, overridden by the factum qua legally empowered to Raseela, rather executing testamentary disposition, visavis the plaintiff, (i) and, when r a in consonance, with the statutory parameters, of, Section 63 of Indian Evidence Act, a marginal witness thereto, one Naresh deposes qua deceased testator Rasila, after being readover the contents of the will, his, in his presence, and, in the presence, of the other marginal witnesses, signaturing it, (ii) and, thereafter his deposing, qua, his alongwith the other marginal witnesses, and, in the presence, of, the deceased testator, doing likewise, (iii) thereupon, the, will propounded by the plaintiff, to, hence succeed, to, the estate of Rasila, is, to be concluded, to be proven, to, stand duly executed hence within the ambit, of, section 63, of, the Indian Evidence Act.
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"45. Succession to right of tenancy - When a .
tenant in any land dos, the right shall devolve (a) on his male linear descendants, if any, in the male line of descent."
13. Be that as it may, both the Courts below also declared the plaintiffs, to, acquire statutory vestment, of, proprietary rights, visavis, the suit land. The making, of, the afore declaratory decree is contested, before this Court, and, the learned counsel for the aggrieved, has, contended, that, with pleadings existing in the records, of, the learned trial Court, and, appertaining, visavis, the L.R.O concerned, ordering, for resumption of land comprised in Khasra No. 168, measuring 1.7 Bighas, (i) and, also qua land comprised in Khasra No. 331/1, measuring 7 biswas, out of the suit land, visavis, defendants No. 6 to 8, (ii) and, after, the, making, of, the afore order, the proceedings, continuing before the LRO concerned, (iii) thereupon, he contends that the mandate enshrined in subsection (3) of Section 104, of, the Himachal Pradesh Tenancy and Land Reforms Act, provisions whereof, stand extracted hereinafter, beget their apt attraction, and, ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...14...
thereupon the afore declaratory decree, rather warranting .
interference by this Court.
"(3) All rights, title and interest (Including a contingent interest, if any) of a landowner, other than a landowner entitled to resume land under subsection (i) shall be extinguished and all such rights, title and interest shall with effect from the date to be notified by the State Government in the official gazette vest in the tenant free from all encumbrances" provided that if a tenancy is created after the commencement of this act, the provisions of this subsection shall apply immediately after the creation of such tenancy."
14. A perusal of the afore extracted provisions, of, the Himachal Pradesh Tenancy, and, Land Reforms Act, does unveil, qua all rights title and interest, of, the landowner, other than, the, entitlement, of, the landowner to hence resume land, under, sub Section (i) suffering extinguishment, and, such rights, title and interest, thereafter vesting in the tenant hence free, from, all encumbrances. The afore statutory exception bestowed, upon, the land owner, and, appertaining to his entitlement to resume lands, and, qua wherewith ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...15...
proceedings are pending before the LRO concerned, (a) hence, .
when the afore sub judice proceedings, appertaining, to, the statutory entitlement, of, the land owner, for, resuming land, as, occupied by the tenants, also, do concomitantly save hence free, from, encumbrances rather vestment(s), of, right title and interest qua therewith, upon, apposite tenants, (b) thereupon when the afore pleadings are meted apt deference, and, hence, on application thereto, of, the afore excepting statutory, mandate, borne in sub section (3) of the Section 104, of, Himachal Pradesh Tenancy and Land Reforms Act, it was insagacious, for, both the Courts below, to, pronounce, qua, the tenants, being entitled to a decree qua theirs acquiring statutory proprietary rights, visavis, the suit land, dehors, the valid execution of will, by Rasila, visavis, the plaintiff, and it only vests tenancy rights, visavis, the suit land, and, upon, the plaintiff.
15. In view of the above, the appeal is partly allowed, and, the declaratory decree of both the learned Courts below ::: Downloaded on - 29/09/2019 02:54:56 :::HCHP ...16...
bestowing statutory vestment of propriety rights, visavis, the .
suit land, upon, the plaintiff is quashed and set aside.
Substantial questions of law are answered accordingly. No costs. All pending applications stand disposed of accordingly.
30.08.2019 ( Sureshwar Thakur ),
(priti) Judge.
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